ORDER
M. Thanikachalam, J.
1. Defendants 4 & 5 in O.S. No. 532/2000 on the file of the Sub Court, Karur are the revision petitioners.
2. Facts warranted for the disposal of the Civil Revision Petition:
(a) The first respondent in this revision petition as plaintiff filed a suit against the defendants, for recovery of a sum of Rs. 1,37,911 based upon a mortgage deed dated 28.3.1990 said to have been executed by the first defendant in favour of the bank, mortgaging the suit properties, for which respondents 2 & 3 stood as guarantor and that a portion of the property was purchased by the revision petitioners/defendants 4 & 5 and in this view, all are liable to pay the amount, in addition to the properties.
(b) The third defendant, by filing a written statement, opposed the claim, that the plaintiff bank at the first instance, has to proceed for the recovery of the mortgage loan only from the first defendant, then entitled to proceed as against 'B' Schedule properties and as such, the claim made against defendants 2 & 3 is not maintainable, in addition to raising some other defence also, which we are not very much concerned at present.
(c) The revision petitioners opposed the claim of the plaintiff, contending that they are not necessary parties to the suit, since they are not parties to the contract or agreement, that minor defendants had purchased some properties from the first defendant for valuable consideration on 21.6.1993 through registered sale deed and that the plaintiff ought to have taken steps at the earliest point of time, having failed, not entitled to proceed against the properties purchased by them, in addition to other defence also.
(d) On the basis of the plea and counter plea, parties went on trial before the trial Court. It appears the evidence on behalf of the plaintiff was closed and thereafter, defendants 2 & 3 had reported that they have no evidence, thereby avoiding stepping into the witness box. Thereafter, when the guardian of the minor defendants 4 & 5 gave evidence on behalf of defendants 2 & 3, who had reported that they have no evidence, he was cross examined by defendants 2 & 3. Only thereafter, invoking Order 16, Rule 1 of C.P.C. a petition has been filed, requesting the Court to issue summons to defendants 2 & 3, to appear before the Court for the purpose of examination by defendants 4 & 5/revision petitioners.
(e) In the affidavit, the reasons alleged for summoning or for the examination of defendants 2 & 3 are that the defendants 2 & 3 are not entitled to cross examine another defendant, that too, when they have reported no evidence and that violating the rules and practice of C.P.C., the counsel for defendants 2 & 3 had cross examined the guardian and therefore, it is just and necessary that defendants 2 & 3 should be summoned, in order to make clear some technical points, further alleging if defendants 2 & 3 have not cross examined the guardian, there might not have been any necessity for them, to summon defendants 2 & 3. In this way alone, as seen from the affidavit, an attempt was made by the revision petitioners to take out summons, through Court by moving the application, which was opposed.
(f) The plaintiff opposed the application stating, that the guardian had admitted, that she had purchased the properties in the name of minors, knowing fully well about the mortgage in favour of the bank, that in view of the admission, the scope of defence of defendants 4 & 5 i.e. the revision petitioners are very limited and in this view, summoning defendants 2 & 3 is unnecessary and this petition is aimed only to drag on the proceedings.
(g) Defendants 2 & 3, who are respondents 2 & 3 in this revision contended, that their cross examination of the guardian is not against any rules or law and since they have been cross examined, it is not mandatory that they should be examined by defendants 4 & 5.
(h) The learned Subordinate Judge, Karur, considering the scope of the suit, defence taken by defendants 2 & 3, as well as the defence taken by the revision petitioners, came to the conclusion that the revision petitioners cannot compel defendants 2 & 3, to appear before the Court to give evidence. Taking this view, the petition came to be dismissed on 17.9.2004, which is sought to be assailed in this revision.
3. Heard the learned Counsel for the revision petitioners, Mrs. N Krishnaveni and the learned Counsel for the respondents, Mr. R. Govindaraj.
4. The learned Counsel for the revision petitioners would contend, that Order 16, Rule 21, C.P.C. coupled with Rule 1(2) of C.P.C. confers power, to the revision petitioners/defendants 4 & 5 to take out summons to co-defendants 2 & 3, since they are required to give evidence, which was not properly considered by the Court below.
5. In response to the above submissions, it was urged on behalf of the respondents that a party to a suit cannot compel the opposite party to give evidence and the above said provisions are not intended for that purpose also and in this view, the dismissal of the application by the Court below is just, having legal favour, not warranting any interference by this Court, that too under Article 227 of the Constitution of India, where admittedly revision is not maintainable under the Civil Procedure Code.
6. The learned Counsel for the revision petitioners is fully aware of the fact, that no revision lies under Section 115 of C.P.C. and that is why the power conferred upon under Article 227 of the Constitution is sought to be invoked. The order passed by the trial Court certainly is not having the effect of disposing the case finally either this way or that way and purely it is an interlocutory order invited by the revision petitioners, invoking Order 16, Rule 21, C.P.C. By the refusal of the Court to issue summons to defendants 2 & 3, the right of the revision petitioners if any, is not at all affected. It is not the case of the revision petitioners, in the written statement that in case of a decree, in favour of the plaintiff or against them, they are entitled to proceed against defendants 2 & 3, thereby raising counter claim or set off, as the case may be, known to C.P.C.
7. Defendants 4 & 5/revision petitioners were impleaded as parties to the suit, by the plaintiff only because of the fact, that they had purchased the mortgaged property, whether it is a portion or otherwise and not for any other reasons. As stated in the counter filed by the plaintiff, it is also admitted by the guardian, about the purchase of the property knowing the mortgage. Even assuming that without knowing the existence of the secured debt, the defendants/revision petitioners had purchased the property, it may not give any relief, when the secured creditor attempted to enforce the debt against the security. Therefore, practically the defendants 4 & 5/revisions petitioners have no defence at all against the plaintiff or virtually, they have no case at all against defendants 2 & 3. This being the position, considering the scope of the suit and the defence, the trial Court had correctly dismissed the application, in which I am unable to see even any prima facie wrong, warranting my interference, to exercise the supervisory jurisdiction, to set it right the same, as if an irreparable loss has been caused to the party, which should not be allowed to stand on record. Viewing the case from this angle, it should be held undoubtedly, that the revision itself is not maintainable, though it is brought under Article 227 of the Constitution of India, since the right conferred under Article 227 of the Constitution has to be used sparingly in rare cases, where the interference is absolute, unavoidable and in fact compulsory, which are not available here. Even assuming that the revision under Article 227 of the Constitution is maintainable, it should be seen, whether the claim of the revision petitioners could be accepted.
8. Order 16, Rule 21, C.P.C. reads:
'Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.'
which is in accordance with the rule substituted by this Court under amendment, which reads:
'When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.'
9. Mere reading of the above Sub-rule gives an impression, that even a party to a suit can be summoned, if he is required to give evidence or to produce document. In that case, what is the procedure to be followed is also given, which says the provisions as to witnesses shall apply.
10. Order 16, Rule 1, C.P.C. gives guideline to the Court, how the witnesses should be summoned for their attendance to give evidence. Sub-Rule 2 to Rule 1 of Order 16, C.P.C. reads:
'A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.'
The rule does not say, it is an automatic or for mere asking, without reason and it is evident, that there must be a reason, not only from the reading of Sub-rule (2), but also by the reading of Sub-rule 3. In Sub-rule 2, when the party applies to the Court, he must state 'the purpose' for which the witnesses are proposed to be summoned or examined. If reasons are assigned, then it is the duty of the Court, for the reasons to be recorded, to permit the application to call the witnesses either by summoning through Court or otherwise, thereby making it clear that a party desirous of obtaining any summons, for the attendance of any person which should include a party to the suit, also should assign reasons viz., the purpose. If the purpose is not stated, then the Court is competent to deny the demand, refuse to issue summons, which cannot be questioned. In this context, we have to see, what is purpose of summoning defendants 2 & 3 by defendants 4 & 5.
11. As said above and as rightly urged on behalf of the respondents, the revision petitioners have not made any counter claim against any of the defendants including the plaintiff. It seems, there is no conflict of interest between the defendants also. The fight is between the plaintiff and the defendants 2 & 3. It is not the case of the revision petitioners that against their interest, defendants 2 & 3 are acting, in collusion with the plaintiff. Therefore, nothing could be extracted or elicited from defendants 2 & 3, by the examination by the revision petitioners. Thus, the purpose of summoning contemplated under Order 16, Rule 1(2), C.P.C. is absolutely absent in this case and in this view, as of right, the revision petitioners cannot claim, that the Court should have issued summons to the co-defendants, for their examination on their side or otherwise.
12. In the affidavit, a peculiar and untenable case is projected for the examination of defendants 2 & 3. As said above, defendants 2 & 3 have reported that they have no evidence and they have avoided the witness box also. But at the same time, they have cross examined D.W.I i.e. the guardian of the revision petitioners. They are entitled to cross examine the guardian, since they have purchased the hypotheca, thereby causing risk to them, since a personal decree is also sought for against them being the guarantors. In this view, the cross examination done by defendants 2 & 3 cannot be found fault and I should say, it was correctly done also, since the revision petitioners are interested in hypotheca. But at the same time, the revision petitioners have no case to plead against defendants 2 & 3. The alleged technical points in para-6 of the affidavit must be a myth and the same cannot be the purpose contemplated under C.P.C. The tenor of the affidavit prompts me to think, that since D.W.I was cross-examined by defendants 2 & 3, in turn the revision petitioners want to cross-examine defendants 2 & 3, that too without purpose, for which the Court is not expected to summon the other party to the suit. Thus on fact, on merit, considering the plea and counter plea also, in my considered opinion, the trial Court has correctly dismissed the application, which deserves confirmation.
13. The submission of the learned Counsel for the revision petitioners that a party to a suit can seek the aid of Order 16, Rule 21, C.P.C. cannot be altogether denied, concluding as if the co-defendant has always no right to summon the other defendants or party to the suit. In a case, where a party to a suit, by filing written statement, supported the case of another party, then avoided the box to give evidence, then this provision could be invoked, since he is required by another party, to give evidence, as said in Order 16, Rule 21, C.P.C. If that is the case, there must be a provision to summon the party, to the suit and that is why the legislators have stated in Rule 21, that the provisions as to witnesses shall apply, which provision is Rule 1 of Order 16, C.P.C. In support of the above submission and the view expressed by me, reliance is placed upon the following decisions.
14. In Pirgonda v. Vishwanath, : AIR1956Bom251 , the Bombay High Court had the occasion to consider the provisions of Order 16, Rule 21, C.P.C, wherein it is observed as follows:
'Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness-box it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons.'
15. In Syed Yasin v. Syed Mohd. Hussain AIR 1967 Mys. 37 the learned Judge has considered the words used in Order 16, Rule 21, C.P.C. and its consequences. The view expressed in the above ruling, that one party to suit can examine the other party, as his witness or require him to produce documents, appears to be the correct approach. Otherwise, there would be no need to have Order 16, Rule 21, C.P.C, if we take the view, that at no point of time, a party to a suit, cannot summon another party. The learned Judge has also taken the view that if the Court comes to the conclusion that prayer of party to summon and examine other party to a suit, as his witness is abuse of process of Court, it can disallow the prayer, which should be the correct approach also. In the above decision it is observed as follows:
'Though the petitioner has a right to summon the other party to the suit and examine him as a witness, it was possible for the Court, if it came to the conclusion that the said application of the petitioner was an abuse of the process of the Court, acting under its inherent powers under Section 151 of the Code of Civil Procedure, to disallow the application. In the instant case, there is no such finding by the Court below. The petitioner has therefore, a right to examine the plaintiff as his witness.'
But applying the above dictum is not possible, to the case on hand, because of the reasons recorded by me supra, since defendants 2 & 3 are not required to give evidence to the revision petitioners, in view of the defence taken and admitted position of the parties. Therefore, the refusal to issue summons by the trial Court, should be upheld, though defendants can invoke Order 16, Rule 21, C.P.C., for which there is strength from some other rulings also.
16. This Court in V.K. Periyasamy @ Perianna Gounder v. D. Rajan 2001 (3) CTC 20 referring certain rulings, more or less in an identical case, has come to the conclusion, that if there are very good reasons, the Court may exercise its discretion, in favour of the party, seeking permission. As rightly observed in para-12 of the Judgment, if there was a total bar on the right of a party to summon other party to give evidence as witness, certainly Order 16, Rule 21, C.P.C. will not find a place in the Code and the mere existence of the Rule would indicate, under certain circumstances, where purposes acceptable to the Court are made out, then summons could be issued, even to examine a party to a suit, provided he is not considered as opposite party, in its real sense.
17. In civil proceedings, there may be a case, where a party supports the case of the plaintiff, but fails to come as co-plaintiff. In order to avoid certain technicalities, it is not uncommon that the supporting party is shown as defendant(s). In that case, the party so impleaded as defendant, cannot be termed as opposite party or opponent as the case may be. In this view, when the party is desirous of obtaining summon to a party to the suit, he can very well invoke Order 16, Rule 21 r/w Rule 1(2), stating the purpose, for which witness is proposed to be summoned or examined. In that case, as observed by Prabha Sridevan, J., when very good reasons are shown, the Court should exercise its discretion in favour of the party seeking permission and there should not be total denial, since no such bar is contemplated, under any of the above said provisions.
18. The submission of the learned Counsel for the respondents that calling opposite party as witness placing reliance upon the decisions in Mallangowda v. Gavisiddangowda AIR 1959 Mys. 194 and Leelavathi K. v. Maheswari Sakthi Ganesan 2002 (3) CTC 551 cannot be accepted in all the cases, though it is well applicable to certain cases, as discussed by me supra. In the first decision, a Division bench of Mysore High Court has held:
'Practice of calling the opposite party as a witness should not be countenanced as it is not in the interests of justice.' and in the second decision, it is said:
'It is true that if a party refuses to voluntarily give evidence, he cannot be compelled to do so at the instance of the opposite party, as the Court is always at liberty to draw an inference against the party, who refuses to give evidence voluntarily.'
In both the cases, it appears, the parties sought to be summoned as witnesses by other side were the real opponents and therefore, compelling such parties to give evidence on behalf of other party, is not desirable judicially, which view I should also endorse. But if the parties sought to be summoned are not the real opponents, then there may be relaxation for very good [reasons. Thus analysing the provisions contained in Order 16, Rule 21, C.P.C. and also the decisions brought to my notice, I conclude that in certain cases, a party to a suit can invoke Order 16, Rule 21, C.P.C, but not always, as of right and it all depends upon the purpose for which he is summoned and the stand taken by the party in the suit. At the risk of repetition, it could be said, if the party, who is desirous of examining another party as witness, has no conflicting interest, whereas the party to be summoned is supporting the other party, who is seeking the aid of Order 16, Rule 21, C.P.C, the Court could very well issue summons and not in the case where there is conflicting interest or no defence at all, as in this case.
19. Viewing the case from all possible angles, either on facts or on law, the revision petitioners are not entitled to seek the permission of the Court to issue summons for the examination of defendants 2 & 3 only because of the reason, defendants 2 & 3 have cross examined D.W.1, therefore the revision petitioners also should cross examine them, which is not the purport of Order 16, Rule 21, C.P.C. Hence the revision is devoid of merits and liable to be rejected.
In the result, the revision petition is dismissed. No costs. C.M.P. No. 1121 of 2004 is also dismissed.